For some months now conservative intellectuals have been debating whether an activist federal judiciary has subverted the moral foundations of the nation (see "GOP Philosopher-Kings Battle for Soul of the Party," Feb. 3). If one is to believe the Rev. Richard John Neuhaus and a panel of symposiasts in the November 1996 issue of First Things, a monthly dealing chiefly with religious matters, a runaway judiciary has taken political power away from American citizens and is imposing a moral revolution. Nationalizing the feminists' abortion agenda, legalizing assisted suicide and generally "siding with moral libertarianism in the culture wars," judges are accused of disfiguring the American government.
Note that Neuhaus does not object to "judicial activism" as such. In fact, he praises the Supreme Courts decision in 1954 ordering the desegregation of Southern schools. Then, it was necessary for the courts to take action because the other branches of government [were] paralyzed." But since then, he goes on, there has been a "qualitative change. Judges no doubt emboldened by the moral aura emanating from Brown [vs. Board of Education] routinely assume that it is their prerogative to make the big decisions about how we ought to order our lives together."
To this it might be answered that the court in Brown did the same thing, but Neuhaus is willing to accept that extension of judicial authority because he agrees morally with its intent, though Brown was based on problematic jurisprudence and dubious sociological evidence. Even more questionable is his reference to "paralyzed branches of government." When Neuhaus wants legislatures to act, they seem "paralyzed" unless they do so quickly. Failing this, it becomes necessary to order a judicial end run, which precisely is the reasoning of those ungodly liberals Neuhaus condemns.
Neuhaus and some of the other symposiasts would do well to consider long-range political developments. The unconstitutional practices they criticize have an institutional history and, as Northwestern University legal scholar Gary Lawson has demonstrated, the congressional agencies that began multiplying in the thirties represent as much of a constitutional derailment as any that since has occurred. In a few years, Lawson notes, there sprang up an oversight and regulatory network that had no basis in the Constitution and routinely exercised judicial powers not belonging to Congress. Later the success of the civil-rights movement brought new opportunities for arbitrary governance. Among the results were the near-total federal control of the right to vote and increased federal administration of education and the workplace. …